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Liberty between the Lines in a Modernist Age

Timothy Sandefur’s “Four Problems with Spontaneous Order” insightfully questions the coherence or operability of the modifier “spontaneous” and, at least implicitly, whether the noun “order” has any particular meaning. Focusing especially on institutions, conventions, and rules, Sandefur suggests that whether their emergence is “spontaneous” is indeterminate, as it depends on the frame with which we view the matter, and that renders indeterminate the drawing of any practical guidance from Hayek’s discourse.

Sandefur concludes: “Nothing a planner can do — and everything a planner can do — would violate Hayek’s precepts.”

But here I’d change “precepts” to “statements.”

By 1930, largely by way of Ludwig von Mises, Hayek had come round to a quite firm classical liberalism. At the heart of any true liberal’s thinking are two notions: the distinction between voluntary and coercive action, and the maxim that freer is better. But Hayek didn’t lead with these liberal notions. He sensed problems with them as simple formulas, and he tried to trace out warrants that would deliver them as implications. Much of his resulting work could be termed excavation, yielding a lot of insight that did indeed help to develop the warrants for the presumption of liberty. Within that work there was a lot of vagueness, and some circumlocution and tenuous reasoning, even gerrymandering and inconsistency, all inviting necessary criticism like that which Sandefur provides.

I’m a sucker for Hayek, however, and tend to forgive the shortcomings. I can’t help seeing him as an historic figure, struggling desperately after the collapse and vanquishing of liberalism, the professionalization of scholarship, and the fierce advance of modernism. The voluntary-coercive distinction — The Distinction — was anathema to contemporary intellectuals, and today remains a matter of deep pervasive taboo. Hayek was aristocratic in upbringing and genteel in temperament, destined to make his thinking palatable, acceptable. In The Constitution of Liberty he defined liberty not properly, as others not messing with one’s stuff, but vaguely and inconsistently, mostly in terms of some of its appealing correlates. Had he, like Herbert Spencer, William Graham Sumner, and Mises, worked plainly and explicitly from The Distinction in developing his ideas, his fate would have been very different — well, very much like that of Spencer, Sumner, and Mises. Strategic or not, Hayek’s circumlocutions may have been for the best.

To some extent Hayek wrote in code. When he wrote of “custom” being between instinct and reason, he mainly or often meant liberal principles; of “competition as a discovery procedure,” freedom as a discovery procedure; of “the market,” freedom; of noncentral versus central decisionmaking, freer versus less free. All liberals still practice such code when circumstances warrant it. Between the lines, then, is focus on The Distinction.

Sandefur is right that we apply the noncentral-central distinction at different frames, but some frames are more focal than others. Though the noncentral-central distinction can be applied to skating in the roller rink or tasks within the firm, Hayek the political thinker is often referring specifically to a frame of freer versus less free. “Spontaneous” often means free (or freer). I would second Sandefur’s criticism that Hayek unduly denied and downplayed the rationalistic deployment of the liberty principle, for it is a powerful analytical fulcrum and engine of inquiry — three cheers for Jeremy Bentham’s rationalistic challenge to Adam Smith on usury, and for Walter Block’s defenses of the undefendable! — but I don’t have difficulty salvaging much cogency from Hayek’s discourse and forgiving much of his obscurantism.

Then there is the second word, “order.” Here, Sandefur raises important issues but goes too far. In one sense, order is any old order: Even right after the deck is repeatedly shuffled, the cards are in an order. Strictly speaking, spontaneous-order talk frames some concatenation and merely says that, by some relevant comparison, the decisionmaking is noncentral. But what makes spontaneous order especially intriguing is when — as in the concatenation flowing into Smith’s woolen coat or Leonard Read’s pencil, or in the spontaneous processes by which language, money, and other beneficial conventions emerge — that order exhibits coordination much better than would come from relevant, more centralized approaches. Such an order is, in Smith’s words, “not originally the effect of any human wisdom, which foresees and intends that general opulence to which it gives occasion” (WN, 25). “Spontaneous order,” per se, does not imply pleasing concatenate coordination, but in context it typically does. Sandefur misses that or looks beyond it — as when he writes of accounting services spontaneously answering demands induced by tax law. A complicated tax code and heavy burden produces a less pleasing, less well coordinated social concatenation.

I think that concatenate coordination is an evaluative affair, one based on sensibilities we ascribe to the being we imagine to behold the concatenation in question. If we refer to the concatenation within a firm, it is natural for the beholder to correspond to the owners, and to assume that the criterion behind coordinativeness is honest profits — a fairly precise and accurate rule. But when Hayek, Ronald Coase, and many others took the idea of coordination beyond the firm, the precision and accuracy melted away. For the concatenation of the great skein, the imagined beholder is much less clearly defined. That did not stop them, however, from talking about coordination of the vast concatenation. Concatenate coordination invokes a Smithian sort of beholding, that of a figurative being (whose hands are invisible!). In talking about concatenate coordination we develop ideas of the sensibilities proper to such a being. Those sensibilities are, as Smith put it, “loose, vague, and indeterminate” — by which he did not mean purely arbitrary or lacking any standard at all. Smith likened such ethical rules to “the rules that critics lay down for the attainment of what is sublime and elegant in composition” (TMS, 175, 327). Picking up on Smith, Lon Fuller (1969) refers to such rules as the morality of aspiration — making becoming use of what is one’s own. Such rules are still rules, and they are still instructive. In talking coordination, we learn both about mechanisms on the ground and about the sensibilities we should hold and uphold. Those larger sensibilities are where we may find warrant for the presumption of liberty — and for the exceptions we would make to it. Liberty is a political grammar and commutative justice a social grammar, to be associated with what Fuller called the morality of duty (refrain from what is another’s).

In Hayek’s day, the Smithian approach was unacceptable in several respects. Science, the modernists said, was about precision and accuracy, so one could not fess up to the loose, vague, and indeterminate. Second, science was value-free: positive, not normative. Our social scientists are not here to help us explore and cultivate our ethical sensibilities. Third, the Smithian approach is about developing important truths that are true by-and-large, not categorically. Fourth, the most important of those truths, or verities, revolve around the liberty principle and its contravention, matters surrounded by taboo. Fifth, the development of such a nexus of learning doesn’t fit the modernist image of a progressive research program, epistemically conquering the cosmos and administered by specialists and expert-advisors.

Hayek was significantly out of step with the modernists (including Mises, by the way). In his day — and today — Smithianism had to be somewhat covert; in fact, The Theory of Moral Sentiments was long neglected. And, during the twentieth century, even talk of “coordination” (in the sense of concatenate coordination) ebbed away, as notions of “efficiency,” “optimality,” and “social welfare,” each carrying an ostentatious semblance of precision, pervaded the discourse, at least in economics.

Still, in Hayek, Coase, Fuller, Michael Polanyi, and others, sometimes somewhat esoterically, and nowadays more exoterically in folks like Russ Roberts, Tyler Cowen, Don Boudreaux, James Gwartney, Robert Lawson, James Otteson, Richard Epstein, especially Deirdre McCloskey — to mention a few Americans, haphazardly — one can find something more sensible, the Smithian way.

Sandefur, then, usefully points out problems, but when we adjust our viewpoints Hayek and “spontaneous order” come through quite OK, perhaps even with new luster.

References

Fuller, Lon. 1969. The Morality of Law. New Haven: Yale University Press.

Also from This Issue

In his lead essay, lawyer and legal theorist Timothy Sandefur proposes that Friedrich Hayek’s understanding of law and justice is flawed: Spontaneous order may be a descriptively accurate concept, but it has little or no effective normative content. Depending on how one chooses to focus, those who wish to reform a spontaneous order are either constructive rationalists – thus, outside the order, and presumptively bad – or they are manifestations of the spontaneous order itself, which changes over time. He suggests that the Hayekian approach to legal reform is simply “be careful,” and that this is not terribly helpful advice.

In his response essay, John Hasnas offers solutions to Sandefur’s problems. He suggests that genuine spontaneous orders can be recognized as having no final decision makers, and hence as recognizing a multitude of individual choices. Constructed orders have a final decision maker, and do not respect individual choice. The normative benefits of a spontaneous order are therefore clear: It offers a greater scope for peaceful cooperation, while tending to reduce coercion incrementally. Still, Hasnas admits, spontaneous orders will always be “riddled with injustice,” in part owing to our own limited knowledge and virtue. He suggests that one key missing insight helps rescue much of Hayekian legal thought: the notion that laws, too, respond to market forces.

Bruce Caldwell proposes two solutions to Sandefur’s problems. The first is to acknowledge that Hayek was a rule utilitarian, albeit one who recognized that the rules we have inherited are the products of a spontaneous order. The second is to claim that Hayek wasn’t proposing any normative conclusions at all – he was simply making observations in a value-neutral way, as might befit a member of the Austrian School, which was deeply influenced by Max Weber’s ideal of a value-neutral social science. Both approaches have their strengths and weaknesses, Caldwell admits, yet in the end he cannot accept Sandefur’s claim that there is no meaningful distinction between spontaneous and designed orders. Although the difference can be difficult to put into words, we know them when we see them.

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